[Redacted], Dan R., 1 Complainant,v.Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2021003005 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan R.,1 Complainant, v. Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2021003005 Hearing No. 550-2018-0465X Agency No. SEA-17-0862-SSA DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 11, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Agency’s final order is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Social Insurance Specialist (Claims Specialist) at its Washington Field Office in Puyallup, Washington. On December 9, 2017, he filed a complaint alleging discrimination based on age (over 40), sex (male), and race (Caucasian) when: (1) on August 3, 2017, he was notified that he was not selected for the Unit Supervisor position advertised under Vacancy Announcement Number SX10017016-17-047; and (2) the Agency subjected him to harassment based on age, sex, and race beginning in 2005 through August 3, 2017, in relation to non-selections. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2021003005 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. With respect to claim 1, the AJ noted that the three selectees for the position included individuals from Complainant’s protected categories: C1 (Caucasian, over 40); C2 (Caucasian, over 40); and C3 (Caucasian male). C1 was approximately one year younger than Complainant. C2 was approximately four years older than Complainant. The AJ found that when the selectees are from the same protected category or categories as the complainant, the inference is that the complainant was not selected for a legitimate, nondiscriminatory reason. We also note Complainant’s assertion in his affidavit that C1, C2, and C3 were selected based on “location bias,” i.e., they were given favorable treatment by the selection official “[i]n order to advance locally based employees with less experience, less job knowledge, and who have held lesser positions in lower grades . . . .” With respect to claim 2, the AJ noted Complainant’s assertion that between 2005 and 2017, he applied to several supervisory positions and was interviewed for many but was not selected. On more than one occasion, he received feedback that his interpersonal skills could use improvement, or that he lacked experience handling “crucial conversations.” Complainant disagreed with these statements and noted that he had extensive experience with the Agency and has successfully handled supervisory duties amongst other high-level assignments over the years. The AJ noted an example provided by Complainant regarding how, after several interviews for which he was not selected, he decided to take a new approach in interviews. During an interview with an Agency official in or around April 2016, Complainant listened to the question and then typed the question down and took extensive notes before answering. The effect of this strategy was that there were spaces of 6 - 8 minutes between the official posing the question and Complainant providing his response, which tripled the length of his interview to approximately 1:30 hours. Complainant was not selected for the position. The Agency, the AJ found, through affidavits from various selecting officials, provided legitimate, nondiscriminatory reasons for selecting other candidates instead of Complainant during this period, and that Complainant did not provide enough evidence to show that the Agency’s proffered reasons were pretext for discrimination based on his protected categories. Accordingly, the AJ found that Complainant failed to make out a case of harassment based on the non-selections he experienced over the years. Furthermore, the AJ found no evidence of comments related to any of his protected statuses being made. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2021003005 3 An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. 2 We note, regarding claim 1, that Complainant failed to show he was clearly superior to the selectees (most of which shared the same relevant protected categories). CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Complainant v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2021003005 4 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. 2021003005 5 If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 19, 2021 Date